Director of the Fair Work Building Industry Inspectorate v Cartledge [2015] FCA 453

FEDERAL COURT OF AUSTRALIA

Director of the Fair Work Building Industry Inspectorate v Cartledge [2015] FCA 453 Citation: Director of the Fair Work Building Industry Inspectorate v Cartledge [2015] FCA 453

Parties: DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE v AARON CARTLEDGE, JIM O'CONNOR, BRENDAN PITT, DAVID BOLTON, LUKE STEPHENSON and CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

File number: SAD 57 of 2014

Judge: MANSFIELD J

Date of judgment: 13 May 2015

Catchwords: CONTEMPT OF COURT – orders for interim injunctive relief – orders for restraint from attending construction site unless lawfully exercising or seeking to exercise rights in accordance with Part 3-4 of the Fair Work Act 2009 (Cth) – whether terms of order are clear, unambiguous and capable of compliance – proper construction of "from attending" – where the alleged contemnor has knowledge of the terms of the order – where the act constituting breach was deliberate and voluntary – where a permit to enter the premises to hold discussions with employees has been obtained under s 484 of the Fair Work Act 2009 (Cth) – whether conduct is unlawful, illegitimate or unconscionable – where the alleged contemnor threatened to take action against another person with intent to coerce the other person to engage in industrial activity contrary to s 348 – meaning of "intent to coerce" – whether a positive hostile intent must be established – where pressure was exerted which negates choice CONTEMPT OF COURT – civil contempt – power to punish for contempt under s 31 of the Federal Court of Australia Act 1976 (Cth) – characterisation of contempt proceedings as criminal in nature –proof of charge beyond reasonable doubt - failure to call witness – where separate proceedings for the imposition of civil pecuniary penalties are commenced in respect of the same incident – whether contempt proceedings can be heard contemporaneously with separate civil proceedings CONTEMPT OF COURT – admissibility of evidence – whether r 42.12 of the Federal Court Rules 2011 (Cth) limits the admissible evidence in the hearing of a charge of contempt to evidence filed with, and at time of charge – whether further particulars of charge are necessary EVIDENCE – reliability of witness – where evidence given in cross-examination directly contradicts evidence given in chief – leave to treat a witness as adverse in re-examination – leave to further cross-examine and re-examine a witness – credibility evidence – re-establishing credibility – prior consistent statements – where prior consistent statements would not have been admissible but for leave to confront by leading questions in re-examination – where prior consistent statements do not materially restore credibility